Baker v. Illinois Central Railroad Co.

Please
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.

In
accordance with 28 U.S.C. §636(b)(1), you have 14 days
after being served with the attached report to file written
objections to the proposed findings of fact, conclusions of
law, and recommendations set forth therein. Failure to file
written objections to the proposed findings, conclusions and
recommendations within 14 days after being served will bar
you, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court.

ABSOLUTELY
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

RECOMMENDATION

ERIN
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

Before
the court is a Motion to Remand[1] filed by plaintiff, Brandy Baker
(“Plaintiff”). The Motion to Remand is
unopposed.[2] For the reasons set forth herein, the
undersigned recommends that the Motion to Remand be GRANTED
and this matter be REMANDED to the 21st Judicial
District Court, Parish of Livingston, State of Louisiana.

I.
Background

Plaintiff's
suit arises out of a June 21, 2016 accident wherein Plaintiff
was allegedly attempting to cross a railroad crossing owned
by defendant, Illinois Central Railroad Company
(“Defendant”) and was struck by a west-bound
Illinois Central train.[3] Plaintiff alleges that the collision
“caused extensive damage to her
vehicle”[4] Plaintiff further contends that she is
entitled to recover damages including but not limited to: (1)
“[m]ental anguish, fear, worry and concern;” (2)
“[l]oss of enjoyment of life;” (3) “[l]oss
of future earning, income and financial capacity;” (4)
“[p]hysical pain and suffering;” and (5)
“[s]erious bodily injury.”[5]

On
October 31, 2017 Defendant removed this suit on the basis of
diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Although the parties appear to be completely diverse,
[6] on
November 7, 2017, this court issued a Notice and Order
explaining that it was not apparent from the face of
Plaintiff's Petition that the claims were likely to
exceed $75, 000.00.[7] Specifically, the court noted that
although Plaintiff alleged that the accident caused
“extreme damage” to her vehicle and sought to
recover damages for “serious bodily injury, ”
there was no allegation regarding Plaintiff's specific
injuries, nor any information regarding claimed medical
expenses.[8] Defendant provided no additional
information regarding the amount in controversy in the Notice
of Removal. Based on the allegations set forth in the
Petition, as well as the information asserted in the Notice
of Removal, the court sua sponte raised the issue of
whether the amount in controversy requirement of 28 U.S.C.
§ 1332 was met, and ordered the parties submit
additional briefing.[9]

On
November 11, 2017, Plaintiff filed the instant Motion to
Remand.[10] Attached to the Motion to Remand is a
“Stipulation” signed by Plaintiff's counsel
asserting that Plaintiff stipulates “that the current
amount in controversy is $75, 000.00 or less, exclusive of
interest and costs.”[11] In her Memorandum in Support
of the Motion to Remand, Plaintiff asserts “[s]ince her
initial treatment, [her] symptoms have diminished” and
her “medical specials are believed to be less than $5,
000.00.”[12] Plaintiff also states that she
“suffered lost income as a result of the collision for
several weeks.”[13]

Defendant
did not file an opposition to the Motion to Remand. However,
Defendant did file a Memorandum Concerning Subject Matter
Jurisdiction pursuant to the Court's November 7, 2017
Notice and Order.[14] Therein, Defendant reiterates
Plaintiff's contentions that medical specials are
believed to be less than $5, 000, and Plaintiff's lost
income only spanned a matter of weeks.[15] Defendant
asserts that while at the time of removal, “complete
diversity of citizenship was unquestionable, the requisite
amount in controversy…was less
clear”[16] and “[u]sing
Luckett[17]and Simon[18] as
amount-in-controversy guideposts…based on what is
currently known, the petitional [sic] allegations in this
action…fall closer to those in
Simon.”[19] Finally, Defendant asserts that it
“does not have a good-faith basis from which to
challenge plaintiff's representations that her potential
damage claim does not exceed $75, 000, exclusive of interest
and costs….”[20]

II.
Law and Analysis

A
defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441(a).
Pursuant to 28 U.S.C. § 1332(a), when original
jurisdiction is based on diversity of citizenship, the cause
of action must be between “citizens of different
States” and the amount in controversy must exceed
“the sum or value of $75, 000, exclusive of interest
and costs.” 28 U.S.C. § 1332(a)-(a)(1). Subject
matter jurisdiction must exist at the time of removal to
federal court, based on the facts and allegations contained
in the complaint. St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)
(“jurisdictional facts must be judged as of the time
the complaint is filed”). In removed actions, diversity
of citizenship must exist both at the time of filing in state
court and at the time of removal to federal court. Coury
v. Prot, 85 F.3d 244, 248-289 (5th Cir. 1996) (citation
omitted). Remand is proper if at any time the court lacks
subject matter jurisdiction. See, 28 U.S.C. §
1447(c). The removal statute, 28 U.S.C. § 1441, is
strictly construed and any doubt as to the propriety of
removal should be resolved in favor of remand. Gasch v.
Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82
(5th Cir. 2007).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;If
removal is sought on the basis of diversity jurisdiction,
then &ldquo;the sum demanded in good faith in the initial
pleading shall be deemed to be the amount in
controversy.&rdquo; 28 U.S.C. &sect; 1446(c)(2). If, however,
the &ldquo;State practice ... does not permit demand for a
specific sum ... [removal] is proper if the district court
finds, by the preponderance of the evidence, that the amount
in controversy exceeds [$75, 000].&rdquo; 28 U.S.C. &sect;
1446(c)(2)(A)(ii)-(B). &ldquo;In order to remain in federal
court, the removing parties must prove by a preponderance of
the evidence that the jurisdictional minimum exists.&rdquo;
Morton v. State Farm Ins. Co., Civl Action No.
08-208, 250 F.R.D. 273, 274 (E.D. La. 2008) (citing
Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th
Cir. 1999)). The removing party may make this showing either:
“(1) by demonstrating that it is ‘facially
apparent' that the claims are likely above $75, 000, or
(2) ‘by setting ...

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